What advice did the Attorney-General really give?

What advice on the legality of the Iraq war did the Attorney-General really give the government?

Speculation, rumours, allegations and denials (some mutually contradictory) have been running riot, to coin a cliché, in recent days.  The latest and most farcical misunderstanding has been the leak of a transcript of an unpublished testimony to the Butler Inquiry by Lord Goldsmith, the Attorney-General, in which he seemed to say that his famous, or infamous, ‘opinion’ on the legality of an attack on Iraq, published in reply to a written Parliamentary Question in the House of Lords on 17 March 2003, had actually been written by two then Blair aides in Number Ten following a discussion there with him.  Lord Butler, having listened to the tape recording from which the transcription was made, has now confirmed the Attorney-General’s assertion that the transcription was mistaken and that Lord Goldsmith had actually said that he had written the PQ reply himself in his own office.  He now confirms that it was written in conjunction with the Solicitor-General, two of his own officials and three from the FCO, and (interestingly) Christopher Greenwood QC.  Even more intriguingly, the Attorney-General’s statement on 25 February (last Friday) concluded that the answer to the PQ published on 17 March 2003 “did not purport to be a summary of [his] confidential legal advice to the government”, although the impression has certainly been given by others that it was.

Some observers have concluded from all this that Lord Goldsmith must have changed his mind between 7 March 2003, the date on which he gave his lengthy and formal written advice to the government, and 17 March when he published his reply to the PQ.  His Opinion of 7 March is widely believed to have set out the Goldsmith/Greenwood theory that the war would be legal on the basis of existing resolutions, but also to have warned that this view was by no means universally shared by other international law specialists, and that if the matter was ever referred to the International Court at the Hague or any other international tribunal, he could not promise that Britain would win.  By contrast the PQ reply of the 17th simply set out an unambiguous and unqualified case for the legality of the war.  The Attorney-General confirmed in last week’s statement that the PQ reply represented his “own genuinely held, independent view that military action was lawful under the existing security council resolutions”.  It’s been generally assumed hitherto that the PQ reply of the 17th reflected or summarised a later opinion, superseding the heavily qualified opinion of the earlier opinion, and indicating that he had come round to the view that no such qualifications or doubts about the outcome of any international court proceedings on the issue were now needed.  This in turn has given rise to the suspicion (now categorically denied by Lord Goldsmith) that between the 7th and the 17th of March he had been leaned on by No. 10 and others to drop the qualifications in the former advice and to tender new formal advice affirming the war’s legality without reservations.  If so, this would of course represent a gross dereliction of the law officers’ duty to give unbiased advice, however politically inconvenient, on what the law required, resisting political pressure to adjust the advice to the demands of government policy.  Hence the renewed demands, still stolidly resisted by the government, to publish all advice tendered at all stages by the Attorney-General, including the later formal advice on which the PQ reply of the 17th was based, to remove any basis for such damaging suspicions.

It now begins to look, however, as if there was no further formal advice after that of 7 March.  Nor did the Attorney-General change his mind about legality between the 7th and the 17th, under improper pressure or otherwise.  At all times his view was that the war would be legal, for the reasons set out in the PQ reply.  This was doubtless reflected in his formal, written advice of 7 March.  Asked in a Parliamentary Question for his opinion on the legality of the war that was about to be launched, he gave it – but carefully refrained from describing it as a summary of the opinion he had earlier given the government, since if it had been a summary it would have had to include the important qualifications included in the earlier written opinion about the real possibility that if the matter were to come before an international court, the war might be declared illegal, a view already held by a clear majority of international law specialists, probably including the legal advisers in the Foreign & Commonwealth Office.

This scenario is, I believe, the only one which fits the various public statements by the Attorney-General, the prime minister, and other government spokespersons.  It also explains the otherwise puzzling refusal of the government to publish all the formal advice tendered by the Attorney-General during the critical period before the war.  They can’t publish the second, revised opinion on which the PQ reply of 17 March was based because it doesn’t exist, and never did.  And they dare not publish the one formal, written opinion of the 7th, because it summarised widely-held beliefs that the war would be illegal, even though the Attorney-General himself didn’t share them, and warned that in any international court hearing on the subject, Britain might well lose the case.  Publication of the qualifications, in other words, would not only tend to undermine public confidence in the validity of the government’s case:  it would also provide potentially lethal ammunition for use against Britain if ever the case came before an international court or tribunal, thus further increasing the odds against Britain’s argument for the war’s legality being sustained.

If this is what really happened, where does that leave the government?  First, it implies that ministers took us to war in the full knowledge that it would be widely held to be illegal, and might well be so determined if it ever came before an international court.  Ministers decided to act on advice provided by one of the very few international law specialists, Christopher Greenwood QC, who believed that existing resolutions authorised it, even though the Security Council itself had consistently refused to consent to military action, and despite the overwhelming weight of international legal opinion that without a second resolution, it would be illegal.  Secondly, the failure to circulate the full opinion of 7 March (including the doubts and qualifications) to the rest of the Cabinet seems clearly to have reflected a fear of the impact that those qualifications and doubts were likely to make on ministers who had been excluded from the decision-making process;  and it’s alleged that circulation of such an opinion to the full cabinet is a mandatory requirement of the ministerial code of behaviour, as well as an established rule of ministerial behaviour.  (Did Lord Goldsmith try unsuccessfully to insist on its circulation to the whole Cabinet?  We shall presumably never know.)  Thirdly, the suppression of an important part of the Attorney-General’s opinion in the bald statement in reply to the PQ must be regarded as a deliberate attempt to mislead, not by an overt lie – the Attorney-General correctly pleads that he never said it was a summary of his opinion, and now indeed denies that it was – but by a suppressio veri reflecting a deliberate intention to mislead, which some of us would regard as morally equivalent to a lie.

If you have the uneasy feeling that we have been here before, you could just be right.  The government’s deliberate suppression of the qualifications and reservations about the flimsiness of the basis for much of the intelligence indicating Iraq’s possession of WMD in the accounts of that intelligence presented by ministers to parliament and the public in the run-up to the war is uncannily similar to what seems to have happened to the Attorney-General’s opinion on the legality of the war.  This is manipulation by suppression, and it’s designed to mislead so as to secure public support for a course of action which ministers knew, both from the warnings in the original intelligence reports and from the heavy qualifications in the Attorney-General’s formal opinion on legality, was quite possibly unwarranted both in fact and in law.

There’s another eerie echo, too.  In the weeks before the NATO attack on Serbia over Kosovo in 1999, the British government’s legal advice cast grave doubt on the legality of using force against the Serbs without UN approval, greatly irritating the then US Secretary of State, Madeleine Albright.  ‘”Get new lawyers,” she suggested. But with a push from prime minister Tony Blair, the British finally agreed that UN security council approval was not legally required.’  So wrote Ms Albright’s press spokesman at the time (James Rubin, Financial Times, 29 September 2000, quoted inter alia at http://www.da.mod.uk/CSRC/documents/balkans/G101/download) .

Sound familiar?  Mr Blair and his colleagues thought they had got away with it on that occasion.  The practice may have proved to be habit-forming.

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